FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414

MIGRATION – removal of non citizens – applicants brought two proceedings in Federal Court’s human rights jurisdiction – Minister notified sixth applicant that he would be removed from Australia as required by s 198 of Migration Act 1958 – applicants seek injunction preventing Minister from removing applicants while proceedings underway – whether applicants entitled to equal access to law – whether removal contravenes entitlement – whether there is power to restrain a lawful act on ground that act will interfere with conduct of proceeding – limits of Court’s power to prevent frustration of its process – principles to be applied – whether s 153 of  Migration Act 1958 would render interlocutory relief futile

Migration Act 1958 (Cth) Division 4, ss 153, 198

Federal Court of Australia Act s 23

Human Rights and Equal Opportunity Commission Act 1986 s 46PO

Racial Discrimination Act 1975 ss 9, 10, 13

Patrick Stevedores Operations No. 2 v Maritime Union of Australia [1998] HCA 31 cited

Sankey v Whitlam (1978) 142 CLR 1 cited

Leeth v The Commonwealth (1992) 174 CLR 455 cited

YAN LI & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

N 901 OF 2001

N 1315 of 2001

EMMETT J

19 SEPTEMBER 2001

SYDNEY

N 901 OF 2001

N 1315 of 2001

THE COURT ORDERS THAT:

1.      The application for interlocutory relief be refused.

2.      The third, fourth, sixth, seven and eighth applicants pay the first respondent’s costs of the interlocutory application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

N 901 OF 2001

N 1315 of 2001

REASONS FOR JUDGMENT

1                     The applicants seek orders restraining the first respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), from removing them from Australia pursuant to s 198 of the Migration Act 1958 (“the Act”) until the determination of various proceedings or at least until those proceedings have reached a more advanced stage.  Each of the proceedings arises out of incidents alleged to have occurred at the Villawood Detention Centre (“the Detention Centre”) on 27 April 2001.

2                     Each of the applicants is an unlawful non-citizen within the meaning of the Act.  Each of them is a detainee within the meaning of the Act.  They are being held at the Detention Centre.  The second respondent, Australian Correctional Management Ltd (“ACM”), operates and manages the Detention Centre. The applicants assert that ACM does so on behalf of, and as agent for, the Minister.  The Minister denies that assertion but he accepts that the Commonwealth has contracted with Australian Correctional Services Ltd (“ACS”) for the provision of detention services at the Detention Centre and that ACS has subcontracted those services to ACM. 

3                     The applicants claim that on 27 April 2001 they were assaulted by guards, employees and agents of ACM, threatened and subjected to physical force beyond that which is reasonably allowed by either the laws of the Commonwealth or the laws of the State of New South Wales.  The applicants also allege that they were denied proper or adequate medical attention in respect of wounds received in the course of the incident and did not receive adequate psychological, psychiatric or trauma counselling.  Further, they allege that they were not provided with adequate accommodation or bedding after the incident and were detained in a small room without adequate furnishing, furniture or ablution facilities for a period of time that was unreasonable.

4                     The applicants have commenced two proceedings in this Court against the Minister and ACM.  They have also made complaints to the Human Rights and Equal Opportunities Commission (“the Commission”) about the conduct of the Minister and ACM.  In addition there have also been police investigations conducted by the New South Wales Police Service (“the Police Service”) in relation to the alleged incidents. 

5                     The applicants claim that orders restraining their removal would be unfair to them on the ground that removal at this stage in the prosecutions of the various proceedings would prejudice the further conduct of those proceedings.  They assert that they are entitled to equality before the law and equal access to the law and that removal at this stage, notwithstanding that the removal is directed by the Act, contravenes those entitlements.

6                     One of the proceedings, N901 of 2001, is under the management of Wilcox J.  It is currently part heard.  In the course of the hearing of that proceeding the Minister gave undertakings to the Court that he would not remove the applicants until he had first given 72 hours notice of his intention to do so.  Three of the seven applicants are no longer in Australia.  On 12 September 2001, the Minister gave notice by facsimile to the sixth applicant, Mr Hai Qing He (“Mr He”), that arrangements were being made to remove him from Australia.  He was notified that he would be removed to Shanghai as early as possible, but not before 72 hours from the time of the facsimile.  The matter came before me as duty judge as a matter of urgency.  Further undertakings as to the time before which Mr He would not be removed expire at 5.00 pm today.

the proceedings in question

7                     The proceedings relied on by the applicants are as follows:

·        Federal Court  proceeding N901 of 2001;

·        Federal Court proceeding N1315 of 2001;

·        Additional complaints made to the Commission; and

·        A criminal investigation being conducted by the Police Service.

I shall say something about each of them. 

PROCEEDING N 901 OF 2001

8                     The applicants claim damages for breach of duty by the Minister and ACM in respect of the alleged assaults and subjection to physical force, denial of medical attention and failure to provide adequate accommodation described above.  They claim that they have suffered physical injuries, nervous shock, injury to feelings, and psychiatric and psychological incapacity.

9                     The applicants claim damages in the proceeding as well as final relief as follows:

“3.       An order that the First Defendant not remove any of the Plaintiffs from New South Wales or Australia or exercise any discretion in relation thereto until all criminal investigations and any associated legal proceedings before any court is or are completed.

 4.        An order that the First Defendant not remove any of the Plaintiffs from New South Wales or Australia or exercise any discretion in relation thereto until all investigations by the Federal Human Rights and Equal Opportunity Commission are completed and until any associated civil proceedings are completed.

………………………

 6.        A declaration that the proper rights of the Plaintiffs have been infringed and that they have not received proper and equal access to the criminal and civil laws of New South Wales and the Commonwealth of Australia contrary to such rights that may be said to be Implied into the Constitution of New South Wales and that of the Commonwealth of Australia.”

10                  That relief claimed in prayers 3, 4 and 6 was said to be based the following paragraphs of the further amended statement of claim:

“6.2     …the Defendants owed and owe the Plaintiffs a duty of care and a general duty to have proper access to and the benefit of the criminal and civil laws of the Commonwealth and that of the State of New South Wales on the basis of the principle of their equality before the law and equal access to the law and any redress or compensation that the law is capable of providing as and when it may be or was required by the Plaintiffs or at any material time.

………………………

 7.2      …in the period from 27 April 2001 – and up to 7 June 2001 that owing to the fact that their alleged assailants were permitted or allowed to leave the jurisdiction of New South Wales by the Defendants and owing to the fact that the Second Plaintiff was removed from the jurisdiction of New South Wales and the Commonwealth that the Plaintiffs are and were denied proper and equal access to the criminal and civil laws of New South Wales and those of the Commonwealth as may be said to exist pursuant to the constitutions of the Commonwealth and that of the State of New South Wales and their ability to receive proper redress and compensation as they may be or are entitled to under those laws.”

11                  The present application is for interlocutory relief in aid of prayers 3 and 4 in the amended statement of claim.  Thus, the final relief sought is an order that the Minister not remove any of the claimants from Australia or exercise any discretion in relation thereto until:

·        all criminal investigations and any associated legal proceedings before any court is or are completed;

·        all investigations by the Human Rights and Equal Opportunity Commission are completed;

·        any associated civil proceedings are completed.

12                  The amended statement of claim in proceeding N 901 is of little assistance in formulating the juridical basis for the alleged entitlement to orders restraining removal.  The applicants point to paragraphs 6.2 and 7.2.  However, while those paragraphs might set out a basis for the relief claimed in prayer 6, they do not indicate any juridical basis for the relief sought in prayers 3 and 4.  If the applicants are entitled to the relief claimed in prayer 6, their removal from Australia would not in any way interfere with the utility of the making of that declaration.

13                  The facts relied by the applicants as giving rise to the remedies claimed seem to be as follows:

·        the Minister and ACM owed a duty to the applicants to enable them to have proper access to and the benefit of the criminal and civil laws of the Commonwealth and New South Wales and any redress or compensation that the law is capable of providing as and when it may be or was required by the applicants;

·        the alleged assailants of the applicants were permitted or allowed by the Minister and ACM to leave the jurisdiction of New South Wales;

·        one of the applicants was removed from Australia;

·        by reason of the aforesaid circumstances, the applicants were denied proper and equal access to the criminal and civil laws of New South Wales and the Commonwealth and were denied the ability to receive proper redress and compensation as they may be entitled to under those laws.

14                  Such allegations may be logically capable of supporting a declaration that the applicants’ proper rights have been infringed and they have not received proper and equal access to the criminal and civil laws of New South Wales and the Commonwealth.  However, the question before me is whether any of the applicants has a right not to be removed from Australia.  The entitlement of the applicants to remain in Australia is not an issue in any of the proceedings, except in relation to prayers 3 and 4 of proceeding N 901 of 2001.  The relief there claimed is not supported by paragraphs 6.2 and 7.2. 

PROCEEDING n 1315 OF 2001

15                  The applicants lodged two complaints with the Commission, which became matters 2011280FC and 2011281FC.  In the first complaint the applicants alleged discrimination on the ground of disability under the terms of the Disability Discrimination Act 1992.  In the second complaint, the applicants alleged racial discrimination under the terms of the Racial Discrimination Act 1975.  Both complaints related to the incidents of 27 April 2001 and were made against the Department of Immigration and Multicultural Affairs (“the Department”) and ACM. 

16                  Both complaints have been terminated pursuant to s 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (“the HREOC Act”) on the ground that a delegate of the President was satisfied that each complaint “is lacking in substance and misconceived”.  The applicants have now commenced proceedings in this Court against the Minister and ACM alleging unlawful acts under the Disability Discrimination Act and the Racial Discrimination Act.  They seek an apology and compensation.  The claims are particularised by reference to the claims made in proceeding N 901 of 2001.

17                  In their claims under the HREOC Act, the applicants rely first on s 10 of the Racial Discrimination Act 1975.  Section 10 provides as follows:

“(1)     If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2)       A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.”

18                  The applicants contend that s 10 of the Racial Discrimination Act operates in the present context to limit the operation of the Act in some way.  They also contend that s 10 operates in a way that creates some substantive right on the part of the applicants.  I do not consider that s 10 has any application except in the context of some enactment.  “Law of the Commonwealth or of a State or Territory” refers to a statute, regulation or other enactment – see Sankey v Whitlam (1978) 142 CLR 1 at 91 - 92.

19                  Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, theConvention to which s 10(2) refers,amongst other things, refers to “the right to security of person and protection by the State against violence or bodily harm whether inflicted by government officials or by any individual group or institution”.  It may be that the applicants can prove that they were denied that right.  However, assuming that the applicants’ right to the security of person has been infringed, I am not persuaded that there is a serious question to be tried as to whether the applicants, as persons of a particular race, colour or national or ethnic origin, do not enjoy that right in so far as that right is also enjoyed by persons of another race, colour or national or ethnic origin.

20                  Alternatively, the applicants rely on ss 9 and 13 of the Racial Discrimination Act, which provide as follows:

“9        Racial discrimination to be unlawful:

(1)       It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)     Where:

(a)        a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)        the other person does not or cannot comply with the term, condition or requirement; and

(c)        the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

(2)       A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3)       This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.

(4)       The succeeding provisions of this Part do not limit the generality of this section.

………………………

13.       It is unlawful for a person who supplies goods or services to the public or to any section of the public:

(a)       to refuse or fail on demand to supply those goods or services to another person; or

(b)       to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;

by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.

21                  The applicants assert that there has been a contravention of s 13 by reason of the refusal or failure by the Minister to supply services in the nature of interpretation services and medical services, except on less favourable terms or condition than those upon or subject to which the Minister would otherwise supply such services.  At present I have seen no evidence that suggests that there is a serious question to be tried as to those matters. 

22                  The applicants tendered the transcript of the whole of the evidence so far taken by Wilcox J.  However, no attempt was made to take me to any part of the evidence that would support a finding that:

·        the Minister supplies interpreting services or medical services to the public or a section of the public; or

·        the Minister was providing such services to the applicants on terms of conditions less favourable than the terms and conditions upon or subject to which the Minister would supply such services to others. 

Further, I was taken to no evidence to indicate that, in the present case, even if the Minister provided services on a differential basis, he did so by reason of the race, colour or national or ethnic origin of the applicants.

23                  I am not persuaded that there is a serious question to be tried as to the complaints made under the HREOC Act.

commission complaints

24                  On 15 September 2001 further complaints were lodged with the Commission on behalf of some of the applicants.  In those complaints allegations were made of unlawful conduct under the Racial Discrimination Act. In particular, Mr He claims that he has received inadequate medical attention for a nose complaint and trouble with breathing.  Complaints have also been made on behalf of one of the other applicants.  The evidence tendered in relation to these complaints is insufficient to show any cause of action.

CRIMINAL INVESTIGATION

25                  On 7 August 2001 an officer of the Department wrote to the Commission saying, inter alia, the following:

“There have been allegations of physical abuse during the transfer.  At the request of DIMA, the New South Wales Police Service (NSWPS) is currently investigating the allegations [concerning the incidents of 27 April 2001].  Departmental officials initially met with the NSWPS on 8 May 2001 to facilitate the investigation.  To date the NSWPS have taken in excess of 80 statements from detainees, ACM and DIMA officers.”

26                  Inspector Smith of the Police Service, who gave evidence during the interlocutory proceeding, said that following the incidents in question, several personnel of ACM were interviewed by the Police Service.  However, certain personnel of ACM declined to participate in an identification parade.  Inspector Smith is currently attempting to assemble a photo board for photo identification purposes.  To do so, it is necessary to have photographs of 16 similar persons. In excess of 200 photographs are required. ACM has been requested to supply photographs of various persons and has several relevant data bases of photographs.  However, the data bases are on different systems.  Inspector Smith expects that some of the photographs that the Police Service have been looking for will be available very shortly.  Once Inspector Smith has sufficient data to enable preparation of a photo board, the Police Service will return to Villawood to interview the applicants further. 

27                  Inspector Smith was asked if the identification process would require Mr He’s presence in Australia.  He replied that he would give Mr He the opportunity of viewing the photo boards.  Inspector Smith also said that, if charges were laid in respect of any assaults, Mr He would be required to give evidence at some later stage.  However in Mr He’s statement to the Police Service Mr He stated that he would be unable to identify any person because “they all look the same to him” and a number of ACM personnel were wearing face masks.

28                  Inspector Smith was also asked about criminal justice stay certificates – see paragraphs [49] – [51] below.  He said that applications for criminal justice certificates have so far been declined because the assaults were not considered to be of a sufficiently serious nature.  As a result, the Police Service are not prepared to be responsible for the costs of retaining the applicants in Australia. The Department has not responded to a request that the Department bear the cost of retaining the applicants in Australia.  If Inspector Smith receives a favourable response from the Department to bear that cost, and charges are laid in respect of the incidents in question, Inspector Smith would consider making a further application for criminal justice certificates in respect of the applicants. 

the power to grant the relief claimed

29                  The juridical basis for the relief presently sought is not entirely clear.  Relief is sought in aid of the various claims that I have described.  Apart from the claims made in prayers 3 and 4 of proceeding N 901 of 2001, the civil claims are limited to claims for damages, a declaration, compensation or an apology.  In so far as the interlocutory relief is sought in aid of those claims, a question arises as to whether there is power under s 23 of the Federal Court Act or under provisions of the HREOC Act to which I shall refer. 

30                  The applicants seek to restrain removal for a limited period of time.  However, the restraint is not in order to preserve the status quo in the sense normally understood in an application for interlocutory relief.  The powers to grant interlocutory injunctions must be exercised for the purpose for which they are conferred.  A power to prevent the abuse or frustration of a court’s process is an established part of the armoury of a court of law and equity.  The power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to the Court by s 23 of the Federal Court Act.  Section 23 of the Federal Court of Australia Act 1976 provides as follows:

“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

31                  Nevertheless, orders must be framed so as to come within the limits set by the purpose which the order can properly be intended to serve.  The Court may make such orders by way of the grant of interlocutory relief as are needed to ensure the effective exercise of the jurisdiction invoked.  Thus, the Court has jurisdiction to make orders to prevent frustration of its process – see Patrick Stevedores Operations No. 2 v Maritime Union of Australia [1998] HCA 31 at [36].  In the present case, however, the orders are not sought to ensure the effective exercise of the jurisdiction invoked.  Rather, they are sought, so the applicants assert, in order to ensure that the proceedings can be effectively prosecuted. 

32                  In so far as the application for interlocutory relief is based on the claim made in proceeding N 1315 of 2001, reliance is placed on s 46PO of the HREOC Act.  Sections 46PO(1). 46PO(4) and 46PO(6) provide as follows:

“(1)     If:

(a)       a complaint has been terminated by the President under section 46PE or 46PH; and

(b)       the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.”

33                 “(4)     If the court concerned is satisfied that there has been unlawful discrimination

by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)       an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)       an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)        an order requiring a respondent to employ or re-employ an applicant;

(d)       an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)        an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)        an order declaring that it would be inappropriate for any further action to be taken in the matter.”

34                 “(6)     The court concerned may, if it thinks fit, grant an interim injunction pending

the determination of the proceedings.”

35                  There is nothing to suggest that s 46PO(6) confers a power beyond the type of power that is conferred by s 23 of the Federal Court of Australia Act.  That is to say, the granting of an interim injunction under s 46PO(6) would be limited to circumstances where the injunction was necessary to ensure the effective exercise of the jurisdiction under s 46PO invoked in the proceeding.

36                  Section 46PP(1) provides that at any time after a complaint is lodged with the Commission, the Federal Court may grant an interim injunction to maintain the status quo as it existed immediately before the complaint was lodged or the rights of any complainant.  The power or jurisdiction conferred by s 46PP likewise is limited to the orders necessary to ensure the effective exercise of the powers of the Commission and the jurisdiction of the Court in the event of an application being made to the Court under the HREOC Act following the determination of a complaint.

37                  The real question is whether there is power to restrain a lawful act on the ground that the act will in some way interfere with the conduct of a proceeding.  The argument is that there is such a power where the act would have the effect of preventing a party from prosecuting a claim.  The applicants contend that the consequence of removal of the applicants from Australia is that they would no longer be able to pursue proceeding N 901 of 2001, proceeding N 1315 of 2001 or their complaints to the Commission.  They say, therefore, that the Court can and should restrain the removal of the applicants, notwithstanding that the removal is both lawful and, indeed, directed by the provisions of s 198 of the Act. 

balance of convenience

38                  In so far as the final relief sought is removal, there would be no question but that power would arise under s 23 to grant interlocutory relief to restrain removal until the final determination of that claim.  However, the exercise of that power would depend upon establishing that there is a serious question for trial.  There would be no difficulty in establishing in the present case that the balance of convenience lies with retaining an applicant in Australia, since removal would destroy the subject matter of the claim for final relief, namely, the right to remain in Australia.

39                  The question is whether there is any serious question to be tried as to the entitlement of the applicants to such relief and if so where the balance of convenience lies.  If there is a serious question to be tried, it is clear enough where the balance of convenience lies.  If the applicants were removed, there would be no utility in making a final determination of whether there should be an order restraining the Minister from removing them.  The subject matter of that claim would be destroyed and there would be no utility in pursuing it.  The inconvenience to the applicants would be extreme.

40                  On the other hand, if the Minister were ordered not to remove the applicants pending the determination of their entitlement to a final order, the Minister would be inconvenienced to the extent that costs might be incurred in the further accommodation of the applicants in detention.  At present, there has been no suggestion of any proposal for the removal of any of the applicants still remaining in Australia other than Mr He.  The balance of convenience undoubtedly requires the grant of an interlocutory injunction if there is a serious question to be tried as to the entitlement of the applicants to final orders as sought in prayers 3 and 4.

serious question TO BE TRIED

41                  The Minister accepts that there is a serious question to be tried as to the applicants’ claims for damages in relation to the incident of 27 April 2001.  No such concession is made in relation to the claim to remain in Australia contained in proceeding N 901 of 2001 or the complaints in proceeding N 1315 of 2001 or the complaints still being considered by the Commission. 

42                  The applicants based their claim for relief on a principle said to underlie the Constitution of Australia and the constitution of New South Wales that all persons have an entitlement to equality before the law and the right to equal access to the law.  They say that the Act is invalid to the extent that it would require removal of the applicants before the proceedings that I have described are completed, where the net effect of removal would be to deprive the applicants of their rights of redress under the civil or criminal law.  They say that to the extent that the Act authorises removal in those circumstances, it offends against the principle enunciated.

43                  The applicants placed reliance on the reasons of Deane and Toohey JJ, in dissent, in Leeth v The Commonwealth (1992) 174 CLR 455 at 485-6:

“In The Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley (1926) 37 CLR 393, at 411-412, Isaacs J. pointed out ‘that it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australian Constitution, of every fundamental constitutional doctrine existing and fully recognized at the time the Constitution was passed’.  The doctrine of legal equality is in the forefront of those doctrines.  It has two distinct but related aspects.  The first is the subjection of all persons to the law:  ‘every man, whatever be his rank or condition, is subject to the ordinary law… and amenable to the jurisdiction of the ordinary tribunals’ Dicey, Introduction to the Study of the Law of the Constitution, 10^th ed. (1959), p.193.  The second involves the underlying or inherent theoretical equality of all persons under the law and before the courts (see, e.g., Holdsworth, A History of English Law, (1938), vol. 10, p.649.  The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it proscribes, punishes or penalizes.  It may have failed adequately to acknowledge or address the fact that, in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality.  Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government.  Conformably with its ordinary approach to fundamental principles, the Constitution does not spell out that general doctrine of legal equality in express words.  The question arises whether it adopts it as a matter of necessary implication.  In our view, several considerations combine to dictate an affirmative answer to that question.”

44                  Underlying the applicants’ contentions is the assertion, and it is no more than an assertion, that removal of the applicants will deprive them of the ability to prosecute the proceedings to which I have referred.  However, there has been no evidence concerning the difficulties that might be encountered by the applicants in giving instructions for the further prosecution of the proceedings. 

45                  The applicants have already given evidence before Wilcox J in proceeding N 901 of 2001.  They have given all of the evidence that they are able to give at this stage.  However, arrangements have been made for Wilcox J to view a security video recording made on the day of the alleged incidents.  For technical reasons, the video recording must be viewed on special equipment, which is available at Bankstown Police Station.  The applicants assert that it is possible that they would wish to give further evidence as a consequence of Wilcox J viewing the video.  They also assert that it would be impracticable to give instructions if they were removed from Australia.  No more specific contention has been advanced as to the need for the applicants to remain in Australia for the purposes of proceeding N901 of 2001. 

46                  For example, there was no evidence of the difficulties, if any, in having evidence taken from the applicants by video link if the applicants are removed from Australia.  It is clear from the transcript which has been tendered that Wilcox J envisaged that the applicants might be removed from Australia.  His Honour appears to have concluded that it was desirable to give the applicants the opportunity of adducing evidence in proceeding N 901 of 2001 before their removal.  In any event, the applicants have given all of the evidence that they can give to date in proceeding N 901.

47                  It may be that I can take some judicial notice of the difficulty that would be encountered by the applicants in prosecuting proceedings after their removal.  However, as I have said, they have already given all of the evidence that they can give to date.  It is not certain that there will be further evidence required of them.  There does not appear to be any reason why they cannot give instructions by telephone.  Proceeding N 1315 of 2001 was commenced on behalf of certain of the applicants who have already been removed from Australia.  An inference can be drawn that instructions were given on their behalf from outside Australia.

48                  In the circumstances, even if there is a principle that would justify the exercise of a power to restrain removal that would otherwise be lawful, because removal would lead to the frustration of the proceedings, I am not satisfied that removal would have that result in the present case. As I have said, it may be possible to draw an inference that further conduct of the proceedings would be difficult, but I am not satisfied that it would not be possible for each of the proceedings to be prosecuted, even following the removal of Mr He and the other applicants remaining in Australia.

redress under the criminal law

49                  The applicants claim that they are entitled to redress under the criminal law and that they should not be removed until the Police Service have completed their inquiries and any consequential charges have been prosecuted and determined.  However, such a claim appears to me to be misconceived.  The State of New South Wales may have an interest in the enforcement of the criminal law.  It may be that offences were committed on 27 April 2001 and that the applicants would be material witnesses in any prosecution in respect of those offences.  However, no application has been made by the State of New South Wales or the Police Service to restrain removal of the applicants.  Indeed, any such application would be bound to fail, having regard to the regime in that regard established under the Act. 

50                  Division 4 of Part 2 of the Act is concerned with criminal justice visas.  Section 155(2), in that division, provides as follows:

“A criminal justice visa may be a visa permitting a non-citizen to remain temporarily in Australia, to be known as a criminal justice stay visa.”

Section 157 provides:

“A criterion for a criminal justice stay visa for a non-citizen is that either:

(a)       a criminal justice stay certificate about the non-citizen is in force; or

(b)       a criminal justice stay warrant about the non-citizen is in force.”

Section 148 provides:

“If:

(a)       an unlawful non-citizen is to be, or is likely to be, removed or deported; and

(b)       an authorised official for a State considers that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and

(c)        that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia;

the official may give a certificate that the stay of the non-citizen's removal or deportation is required for the administration of criminal justice by the State.”

Section 150 provides:

“If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.”

Section 151 provides:

“(1)     If an unlawful non-citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation.

 (2)      If a criminal justice stay warrant about a non-citizen is in force, the non-citizen is not to be removed or deported.

 (3)      If a court issues a criminal justice stay warrant about a non-citizen, the applicant for the warrant is responsible for the costs of any maintenance, accommodation or immigration detention of the non-citizen while the warrant is in force.”

There has been no application for a criminal justice stay certificate.  Nor has there been an application for a criminal justice stay warrant.  As a result, neither a criminal justice stay certificate nor a criminal justice stay warrant has been issued.

51                  The object of Division 4 is to lay down an exhaustive regime for dealing with circumstances such as have arisen in the present case in relation to criminal investigation.  If the applicants are required in Australia in connection with any proposed criminal proceeding or investigation, it would be open for an authorised official of New South Wales under s 148 to give a certificate or for a court to issue a warrant under s 151.  A witness in respect of a criminal offence, albeit be a victim of that offence, has no right to require the State to prosecute in respect of the offence.  It may be open to a victim to embark on a private prosecution.  There has been no suggestion that that is the intention or desire of any of the applicants.  There is merely an assertion that they are entitled to redress by way of criminal prosecution of offenders, if there have been offences committed, in relation to the incident of 27 April 2001.  I do not consider that, in so far as the claim is based on any right of redress under the criminal law, it has any foundation.

section 153

52                  The Minister relies on the provisions of s 153 of the Act, which provides as follows: 

“(1) Subject to subsection (2), if:

(a) this Act requires the removal or deportation of a non-citizen;

and

(b) there is no criminal justice stay certificate or criminal justice stay warrant about the non-citizen;

 any other law or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from the section, does not prevent the removal or deportation.

(2) Subsection (1) does not permit the removal or deportation of a non-citizen if that removal or deportation would be in breach of an order of the High Court or the Federal Court.

The effect of s 153 is not entirely clear to me.  Under s 153(1)(a), if the Act requires the removal of a non-citizen, any other law, or anything done under any other law, does not prevent the removal.  However, that provision is subject to s 153(2), which provides that s 153(1) does not permit the removal of a non-citizen if that removal would be in breach of an order of the High Court or the Federal Court. 

53                  Section 153 appears in Subdivision C of Division 4.  Subdivision C is headed “Criminal Justice Certificates etc. Staying, Removal or Deportation”.  Section 153 itself is headed “Removal or deportation not contempt etc. if no stay certificate or warrant”.  The intention of the provision appears to have been to ensure that, where there was a prosecution on foot, it would not be a contempt of the Court before which the prosecution is pending to remove a witness or an accused person. 

54                  The explanatory memorandum in connection with the bill to insert s 153 in its original form relevantly provided as follows:

“184.   This section ensures that, apart from the Division 3 provisions relating to the administration of criminal justice, there is no power under any Australian law which may be used to prevent removal or deportation of a non-citizen which is otherwise required by the Principal Act.  In particular, the section ensures that it is not a contempt of court to remove or deport a non-citizen from Australia even if there are orders by a court (other than a warrant under section 54G) that the non-citizen not be removed or deported.”

Section 153(2) was inserted subsequently.  The explanatory memorandum relating to the bill for that amendment relevantly provided:

“106.   Section 54HA reflects the priority to be given to removal or deportation of non-citizens when that action is required by the Migration Act.  The section provides that the only mechanism for staying removal or deportation is the issue of a criminal justice stay certificate or a criminal justice stay warrant.  However, on a literal reading, the section would also have permitted removal or deportation in contravention of an order of the Federal Court or the High Court, eg where the Federal Court had made an interlocutory order staying removal or deportation pending the hearing of an application for judicial review.  This was not the policy intention.

107.     The amendment will preserve the powers of the Federal Court and the High Court to stay removal or deportation. However, State and Territory courts will only be able to stay deportation or removal via the statutory scheme, ie a court may issue a criminal justice stay warrant under section 54G.”

55                  Section 153(2) is unspecific as to the jurisdiction that might be invoked by the High Court or the Federal Court in making an order restraining removal.  It may be that the section should be read down so as to be limited to an order made in relation to the status of a person under the Act.  That is to say, it is only if there were a question as to the validity of a decision of the Minister refusing a visa or revoking a visa, that the High Court or the Federal Court could restrain removal until the question of validity had been finally determined. 

56                  In the event, I do not have to determine the effect of s 153.  It does not in terms purport to remove any power or jurisdiction from the Court.  Rather, it simply says that something done under another law, presumably including the Federal Court of Australia Act, does not prevent removal.  It may be, in some circumstances, the granting of an order restraining removal by the Court would be futile because of the operation of s 153(1).  It is clear enough that the purpose was intended to avoid the consequences of contempt, notwithstanding that the section does not say that.  However for the reasons I have indicated I do not consider that it is necessary to consider section 153. 

concusion

57                  It follows from the views that I have expressed that the application for interlocutory relief should be refused.  It seems to me that the usual rule that costs follow the event should apply. However, as several of the respondents have been removed from Australia, only those remaining in detention shall be liable for the Minister’s costs.

Associate:

Dated:              19 September 2001